What is a Fact?
I was teaching Carnival Cruise Lines to my first-year contract students. This is the Supreme Court opinion holding that a forum selection clause in the fine print on the back of a cruise line ticket binds a customer who bought the ticket near her home in Washington state and was injured on the cruise to travel to Flordia to sue. As we discussed the opinion, a student explained that the clause is good for everyone (except the woman who was injured) because, quoting the Court, "passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys."
Is this a question of fact or of law? "Fact, of course," said the students. So I asked how this fact could be proven. What followed was a wonderful, multi-student discussion of maginal pricing, elasticity of demand, etc. Even as I pressed on the presumptions underlying the deductive model--fully informed parties, competitive markets, low transactions costs, etc--the students hung on to their model. They were smart and sophisticated in their arguments, but the bottom line was that they "proved" the fact of lower costs deductively by appling what they saw as immutable economic principles.
When I pointed out that this lovely conversation was all about theory and not fact, they were resistant. So I reversed and asked what the plaintiff might offer as proof to show that the justice was wrong. Much silence followed.
I finally filled in the blanks, suggesting some empirical tests--ticket prices for companies that do/don't use such clauses, changes in pricing before/after such clauses are used, evaulation of whether cost is large enough to be reflected in price, etc. They got the idea and had some good suggestions
What struck me, and the reason I bring it to this group, is how these very bright students seemed to believe that deductive logic produced a "fact" that they could not or would not challenge. Perhaps my class was abberational, but it made me wonder about how we are educating our students, both before and during law school. Is it all about deduction, with nothing left over for reality?
I speculate that my contracts class includes several future law teachers and future policy makers, many future community leaders and a lot of future voters. If the deductive logic of economics is all-controling, then empirical work--indeed, empirical questions--will always remain at the intellectual and political margins.
The class reminded me that empirical scholarship is important, but empirical teaching may be more important. These students are our future.